This second appeal was dismissed as no substantial question of law arose. The court held that the plaintiff had no possession or interest in the property and the suit for perpetual injunction was not maintainable in its current form.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
TUESDAY, THE 6TH DAY OF JUNE 2017/16TH JYAISHTA, 1939
RSA.No. 782 of 2016 (B)
AGAINST THE JUDGMENT AND DECREE DATED 19-01-2016 IN AS 139/2012 of PRINCIPAL SUB COURT, THALASSERY
AGAINST THE JUDGMENT AND DECREE DATED 16-07-2012 IN OS 254/2007 of MUNSIFF COURT, KUTHUPARAMBA
APPELLANT/APPELLANT/PLAINTIFF:
THUNDIKKANDI THIRUVOTH PRADEEP KUMAR,
S/O MADHAVAN, 60 YEARS, KADIRUR ASMSOM, PONNIAM DESOM, THALASSERY TALUK, KANIKKOTT KARAYIL SUDHEER KUMAR, S/O BALAN, 53 YEARS, RESIDING AT SREE AYITHARA MAMBARAM, THALASSERY TALUK,
(PERMITTED TO CONDUCT THE SUIT ON BEHALF OF THE PLAINTIFF ON THE STRENGTH OF POWER OF ATTORNEY AS PER ORDER IN IA 1801/2010 DATED 17/08/2010).
BY ADV. SRI.CIBI THOMAS
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1. C.K.YESODA, W/O KARAYI CHATHUKUTTY, AGED:63 YEARS, CHENDAYAD PO, PUTHOOR AMSOM, CHENDAYAD DESOM-673602.
2. C.K. BINDHU,
D/O KARAYI CHATHUKUTTY, AGED:44 YEARS, MUTHARIPEEDIKA, MOKERI PO, MOKERI AMSOM,DESOM-671321.
3. C.K.SINDHU,
D/O KARAYI CHATHUKUTTI, AGED:41 YEARS, PAYERI HOUSE, CHEERATTA, PO. CHERVANCHERI, CHERUVANCHERI AMSOM, DESOM-670650.
RSA.No. 782 of 2016 (B)
4. C.K. SHEENA, D/O KARAYI CHATHUKUTTI, AGED:36 YEARS, PARAPRATH HOUSE, MOOZHIVAYAL, PATIAM AMSOM, DESOM, P.O.PATHAYAKUNNU-670691.
5. C.K.BIJU S/O KARAYI CHATHUKKUTTIL , AGED:38 YEARS, CHENDAYAD PO, PUTHOOR AMSOM, CHENDAYAD DESOM-673602. 6. VARAPRATH PRAKASHAN, VARAPRATH HOUSE, AGED:44 YEARS, MOOZHIVAYAL, PATTIAM AMSOM DESOM, P.O.PATHAYAKUNNU-670691. (SUPPL. D6 IS IMPLEADED AND AMENDED AS PER ORDER ON IA 1910/2010 AND 1911/2010 DATED 17/08/2010)
BY ADV. SRI.R.RAMADAS
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DSV/-
B. KEMAL PASHA, J.
................................................................ R.S.A. No. 782 of 2016
............................................................... Dated this the 6th day of June, 2017
J U D G M E N T
Challenging the concurrent findings entered by the Munsiff's Court, Kuthuparamba in O.S.No.254/2007, followed by those of the Subordinate Judge's Court, Thalassery in A.S.No.139/2012, the plaintiff in the suit has come up with this second appeal.
Chathu from whom the plaintiff had allegedly purchased the undivided share of Chathu out of 14 cents of property.
R.S.A.782 of 2016
-: 2 :-
property through Ext.A1, when a suit for partition was pending, which was filed by the said Chathu. Even though the details of the said suit which was then pending were recited in Ext.A1, the plaintiff did not choose to get himself impleaded in the suit. Subsequently, a final decree was passed during the life time of Chathu. After the passing of the final decree, Chathu died. The final decree passed in favour of Chathu was subsequently put in execution and the property allotted to Chathu, which is the plaint schedule was allotted to defendants 1 to 5, who are the legal representatives of Chathu. Thereafter, defendants 1 to 5 had sold the property to another person. Both the courts below found that the plaintiff has no possession or interest over the plaint schedule property. Consequently, the suit was dismissed and subsequently the appeal preferred by the plaintiff was also dismissed.
R.S.A.782 of 2016
-: 3 :-
R.S.A.782 of 2016
-: 4 :-
appellant that deceased Chathu was prosecuting the partition suit for and on behalf of the appellant, cannot be believed. If, as a matter of fact, Chathu had executed Ext.A1 sale deed and disposed of all his interest over his undivided share in the property, Chathu would not have proceeded with the said suit in normal circumstances.
R.S.A.782 of 2016
-: 5 :-
nothing to interfere with the impugned judgments. Matters being so, no substantial question of law arises for consideration in this matter. Therefore, this second appeal is only to be dismissed, and I do so.
In the result, this Second Appeal is dismissed. It is made clear that this Court has not entered any finding with regard to the title of the appellant over the property. All the interlocutory applications in this appeal are closed.
Sd/- B. KEMAL PASHA, JUDGE.
ul/-
// true copy //
P.S. to Judge.
2 issues framed by the court
Whether there is any substantial question of law arising from the present second appeal.
Whether the lower appellate court's findings regarding the maintainability of the suit for injunction should be interfered with.
Thundikkandi Thiruvoth Pradeep Kumar
C.K. Yesoda
C.K. Bindhu
C.K. Sindhu
C.K. Sheena
C.K. Biju
B. Kemal Pasha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
